The Senate that Senators Want

Events in the Senate over the past few weeks offer two clear lessons. First, a simple majority in the Senate has the power – and indeed has long had the power – to change how the institution operates. The strategy proposed by Harry Reid – which essentially duplicated the strategy proposed by Republican leader Bill Frist (R-TN) in 2005, which in turn echoed a strategy promoted by liberals in the 1950s-70s and by Republican leader Nelson Aldrich as far back as January 1891 – has been available to a determined Senate majority at least since the nineteenth century – as we discuss in our book on the filibuster. The fact that the Republican minority relented in the nominations fight indicates that the threat of “reform by resolution” is real and that the Senate is not locked into its rules by virtue of its past institutional history. Second, the filibuster persists because a majority of senators has consistently preferred a system in which the minority can block action to one in which a simple majority decides every issue. Senators do not want their Chamber to become the House.

In this case, once Harry Reid showed that he had the votes and the determination to impose majority rule on executive branch appointments, Republicans surrendered on the core issue of approving Obama’s nominations. We likened the filibuster to a war of attrition in our book; in such a contest, when the majority shows that it is committed to standing firm – even to the point of showing its willingness to carry out a rules change – the leverage shifts from the obstructive minority to the side with more votes.

At the same time, however, it is important to recognize exactly how difficult it is to persuade 51 senators that they should support going nuclear. In this case, it took years of mounting frustration for Democrats, as their inability to confirm executive nominations undermined the routine functioning of government. The necessary 51 votes only could be amassed following a series of compromise deals between Reid and McConnell, each of which promised to limit the scope of obstruction, but each of which failed.

The hesitance to go nuclear over executive nominations was rooted in senators’ shared understanding that once majority rule is imposed by force in one decision-making area, the impetus for a future majority to impose majority rule in other areas would be strong. The pressure on a future GOP majority to go nuclear to assure the nomination of a conservative Supreme Court justice or to help pass legislation to repeal the Affordable Care Act would likely prove irresistible. While longtime advocates of filibuster reform hope for just that outcome – a march towards majority rule across the board – most senators evidently prefer to retain some power for the minority to obstruct.

The problem for those who hope to maintain the Senate’s existing rules and understandings without change is that in this era of intense partisan polarization and warfare, this year’s showdown between Reid and McConnell will be repeated endlessly. Brinksmanship followed by furious efforts to secure last minute deals is how Congress has attempted to govern recently. If such brinksmanship becomes a routine aspect of filibuster politics, eventually both sides will miscalculate and the nuclear option will be exercised, even though most senators prefer an equilibrium in which the minority can, at least under certain circumstances, obstruct.

A potential solution is for the Senate to take advantage of the deep uncertainty about who will be in control of the Senate and the White House in January 2017. At any given moment, it is clear who will be the short-term beneficiaries of a specific reform – such as allowing only temporary obstruction of judicial nominations but providing an eventual majority vote. But no one has any idea which party would benefit from such a reform in January 2017, creating the potential for a positive-sum solution with respect to the prevailing attitude among senators. That is, rather than simply breathe a sigh of relief and go back to business as usual, senators should take the recent showdown as an indication that the dysfunction permeating the Senate requires a more permanent fix. Unrestrained minority obstruction across all domains is not sustainable. At the same time, simple majority rule is not something that most senators want. An alternative would be to attempt to forge an agreement setting out different decision-making rules for different types of decisions (e.g. executive nominations, judicial appointments, ordinary legislation) and specifying that these rules would take effect in January 2017.

Some might argue that today’s Senate cannot bind a future Senate in this manner; if that is a concern, senators could sign a detailed pledge laying out exactly what the new rules will look like and promise to vote for those rules on the first day of the January 2017 session. As long as more than two-thirds of the Senate agrees to such a commitment, these new rules could be adopted through the normal Senate rule-making process. The fact that senators generally accept the Senate as a continuing body can be used to ensure that the rules change is honored.

We are not the first to propose this potential solution, though in the past advocates have seen it as a way to implement simple majority rule. Instead, we emphasize the flexibility offered by this approach: it would allow today’s Senate to think seriously about what rights the minority should have in the future and what capacity the majority should have to make policy, separate from today’s immediate battles.

This most recent fight over the nuclear option ought to encourage senators to consider specific reforms to balance majority rule and minority rights. Such a path would make it less likely that a future majority party will be sufficiently frustrated to go nuclear and, as a result, push the Senate further along the path towards pure and simple majority rule.

3 Responses to The Senate that Senators Want

There is a conflict between your contention that a simple majority of the Senate can change the rules and your proposal that the Senate fix new supermajority rules for the future. Once one accepts the proposition inherent in the nuclear option (that a simple majority has the constitutional right, not merely the raw power, to change the rules at any time), it becomes impossible to agree to entrench any rules, no matter how many Senators agree.

So while I agree with the ultimate goal of enacting new substantive rules along the lines you suggest, the first order of business must be to reject the nuclear option and provide for another method of changing the rules that reduces the pressure for opportunistic resort to the nuclear option. I have suggested that proposed rules changes would not be subject to unlimited debate under Rule XXII if they went through a multi-Congress process (much as you are suggesting for your proposed changes).

“… This most recent fight over the nuclear option ought to encourage senators to consider specific reforms to balance majority rule and minority rights…”

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Interesting — what are those specific “rights” that exist for a U.S. Senate minority ? Where did they come from ?

How many votes does it take to pass a normal bill or resolution in the Senate, under the U.S. Constitution ?
Where is the majority requirement stated ?

Bottom line is that a current Senate makes its own rules on how it conducts most all its proceedings and output. Thus, most everything is ultimately arbitrary– the real rules are that there are no real rules. It’s now become merely a complex political game determined by a temporal set of dysfunctional players… rather than a mature deliberative, legislative body.

Is the uncertainty over control of the White House and Senate in 2017 really that deep?

While the economy is the huge unknown, we know the class of the Senate up at the time, and that field looks pretty ripe for Democratic pickups. The White House is more uncertain, but given the popularity of the Trende argument on the right and the sheer demographic wall that argument runs up against, it seems like the modern GOP is determined to not win the White House again.

(Mostly just playing devil’s advocate here: while MY uncertainty over 2017 isn’t all that deep, I very much believe that THEIR uncertainty is deep, which is all that matters)

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